Citation Nr: 0834998
Decision Date: 10/10/08 Archive Date: 10/16/08
DOCKET NO. 02-01 848A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Entitlement to service connection for a schizoaffective
disorder.
2. Entitlement to service connection for residuals of
injuries to the head, arm, hand, and leg.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to August
1976. This case comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2001 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Baltimore, Maryland, which, in pertinent part, denied
entitlement to service connection for the above conditions.
The veteran's appeal was previously before the Board in
August 2003 when the Board remanded the case for further
action by the originating agency. The case has been returned
to the Board for further appellate action.
In August 2001 the veteran filed a claim for entitlement to
service connection for a seizure disorder. This claim has
not been adjudicated and is referred to the RO for the
appropriate action.
FINDINGS OF FACT
1. Schizoaffective disorder was first shown years after
service and is not related to a disease or injury during
service.
2. Injuries of the head, arm, hand, and leg were not
incurred during service and residuals of those injuries are
not etiologically related to active duty service.
CONCLUSIONS OF LAW
1. Schizoaffective disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1112, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.303, 3.307, 3.309 (2007).
2. Residuals of injuries to the head, arm, hand, and leg
were not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§
3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007) redefined VA's duty to assist the veteran
in the development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Under the VCAA, VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
request that the claimant provide any evidence in his
possession that pertains to the claim. Pelegrini v. Principi
(Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
The United States Court of Appeals for Veterans Claims
(Court) has also held that the VCAA notice requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; 3)
a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
In a letter issued in April 2004, subsequent to the initial
adjudication of the claims, the RO notified the veteran of
the evidence needed to substantiate his claims for service
connection. The letter also satisfied the second and third
elements of the duty to notify by informing the veteran that
VA would try to obtain medical records, employment records,
or records held by other Federal agencies, but that he was
nevertheless responsible for providing any necessary releases
and enough information about the records to enable VA to
request them from the person or agency that had them.
For claims pending before VA on or after May 30, 2008, 38
C.F.R. 3.159 was recently amended to eliminate the
requirement that VA request that a claimant submit any
evidence in his or her possession that might substantiate the
claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). Nonetheless,
the April 2004 letter did tell the veteran that he could
assist by providing VA with the necessary evidence. He
subsequently did submit additional evidence.
The veteran has substantiated his status as a veteran. He
was notified of the second and third Dingess elements by
means of the April 2004 letter. He did not receive VCAA
notice as to the effective date and rating elements of the
claims until the March 2008 supplemental statement of the
case (SSOC). VCAA notice cannot be provided in a post-
decisional document such as a SSOC. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as the claims are
being denied, no effective date or rating is being set. The
delayed notice on these elements, therefore, does not deprive
the veteran of a meaningful opportunity to participate in the
adjudication of the claims. See McDonough Power Equip. v.
Greenwood, 464 U.S. 548, 553 (1984).
There was a timing deficiency in that the April 2004 letter
was sent after the initial adjudication of the claims.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The
timing deficiency was cured by readjudication of the claims
in a March 2008 supplemental statement of the case. Mayfield
v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).
The Duty to Assist
The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This
"duty to assist" contemplates that VA will help a claimant
obtain records relevant to his claim, whether or not the
records are in Federal custody, and that VA will provide a
medical examination or obtain an opinion when necessary to
make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the veteran,
including service medical records, records from various
federal agencies, and private medical records. The Board
notes that records from several of the veteran's reported
medical facilities are not of record; however, the RO or
Appeals Management Center took all reasonable steps to obtain
these records. Records from the University of Maryland
Hospital, Montebello Rehabilitation Hospital, and Patuxent
Institute were requested by the RO in March 2005. A May 2005
response from the University of Maryland Hospital indicated
that there were no available records pertinent to the
veteran's claim at that facility. The veteran was informed
in a November 2005 letter that he was ultimately responsible
for the procurement of records from Montebello Rehabilitation
Hospital and Patuxent Institute. The veteran submitted
additional private treatment records dated in 1998 and 1999
(for which he waived consideration by an agency of original
jurisdiction).
Additionally, the veteran was provided VA examinations in
November 1999. While the examinations pertaining to the
veteran's claim for entitlement to service connection for
residual injuries of the head, arm, hand, and leg do not
contain medical opinions as to whether these conditions are
related to service, such opinions are not necessary. During
his VA examinations, the veteran did not allege that he
incurred an injury to the head, arm, hand, or leg during
active duty service and instead reported that his injuries
were the result of a post-service car accident. In fact, the
veteran has consistently reported to all his health care
providers that he sustained a head injury and fractures of
the right leg and arm during a 1985 motor vehicle accident,
almost ten years after his separation from service. In
addition, the record contains opinions from numerous
physicians linking the veteran's residual disabilities to his
post-service car accident. Therefore, to the extent that the
veteran is now reporting that his disabilities stem from in-
service injuries, those contentions, as discussed below, are
not credible. The medical evidence of record is sufficient
to decide the claim and there is no reasonable possibility
that remanding the case for additional medical opinions would
result in evidence to substantiate the claim.
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements. The appeal is thus ready to be considered on
the merits.
Legal Criteria
Service connection will be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection will be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R.
§ 3.303(a).
Establishing service connection generally requires (1)
medical evidence of a current disability; (2) medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.
App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of
establishing the second and third Shedden/Caluza element is
through a demonstration of continuity of symptomatology.
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12
Vet. App. 296, 302 (1999). Continuity of symptomatology may
be established if a claimant can demonstrate (1) that a
condition was "noted" during service; (2) evidence of post-
service continuity of the same symptomatology; and (3)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and the post-service
symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson,
12 Vet. App. at 253 (lay evidence of in-service incurrence
sufficient in some circumstances for purposes of establishing
service connection); 38 C.F.R. § 3.303(b).
Lay persons are not competent to opine as to medical etiology
or render medical opinions. Barr v. Nicholson; see Grover v.
West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Lay testimony is competent,
however, to establish the presence of observable
symptomatology and "may provide sufficient support for a
claim of service connection." Layno v. Brown, 6 Vet. App.
465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398,
405 (1995) (lay person competent to testify to pain and
visible flatness of his feet); Espiritu, 2 Vet. App. at 494-
95 (lay person may provide eyewitness account of medical
symptoms).
"Symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology." Savage, 10 Vet. App. at 496
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once
evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted").
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2007).
Additionally, for veteran's who have served 90 days or more
of active service during a war period or after December 31,
1946, certain chronic disabilities, such as psychoses, are
presumed to have been incurred in service if such manifested
to a compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a),
3.309(a).
With chronic diseases shown as such in service, or within the
presumptive period after service, so as to permit a finding
of service connection, subsequent manifestation of the same
chronic disease at any later date, however remote, are
service connected unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2007).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Schizoaffective Disorder
The veteran contends that service connection is warranted for
schizoaffective disorder as it was incurred during active
duty service. Service treatment records show that the
veteran was diagnosed with a sociopathic personality disorder
in March 1976. He was found to be psychiatrically normal at
his July 1976 separation examination.
The post-service medical evidence establishes that the
veteran has been hospitalized for psychiatric disorders
multiple times, beginning in June 1981 when he was diagnosed
with alcohol and substance abuse with related seizures at the
Baltimore VA Medical Center (VAMC). His first diagnosis of
schizoaffective disorder was rendered in August 1999 during a
mental health screening at the VAMC. A month later, the
veteran was hospitalized for worsening psychotic symptoms.
He reported a history of psychiatric illness and
hospitalizations since 1980.
Upon VA examination in November 1999, the veteran reported
that he began having psychological symptoms as a teenager
that were related to his drug and alcohol abuse. He also
stated that his significant psychiatric problems began in
1980 or 1981 when he was hospitalized for psychosis. After
examining the veteran and reviewing the claims folder, the
examiner noted that there was no evidence of psychiatric
conditions consistent with psychosis at the time the veteran
enlisted in the military, although there were some antisocial
traits noted during service. The diagnoses were
schizoaffective disorder, and alcohol and marijuana
dependence, in remission. The examiner concluded that the
onset of the veteran's psychiatric disturbance was in 1980
and not during his military service.
Recent clinical records from the Baltimore VAMC show that
that the veteran has continued to undergo treatment for
schizoaffective disorder.
The record clearly shows a current diagnosis of
schizoaffective disorder. In addition, the veteran has
reported the onset of his symptoms during service. The Board
notes that the veteran is competent to report his symptoms
and when they occurred. While service treatment records only
show a diagnosis of a personality disorder, a disability for
which service connection is precluded under 38 C.F.R. §
3.303(c), resolving doubt in the veteran's favor, the Board
finds that two of the three elements necessary for service
connection-current disability and an in-service injury-are
demonstrated.
The veteran has not reported a continuity of symptomatology
since service. The history he has provided is to the effect
that he experienced symptoms of schizoaffective disorder
during service, but that he did not seek treatment for these
conditions until 1980, four years after his discharge from
active duty service in August 1976. Clinical records also
indicate that the veteran has consistently reported the onset
of psychiatric symptoms in 1980.
Schizoaffective disorder is classified as a psychosis.
38 C.F.R. § 3.384(e) (2007). Hence, it is subject to
presumptive service connection if manifested in service or to
a compensable degree within one year of service. 38 U.S.C.A.
§ 1112; 38 C.F.R. §§ 3.303(d), 3.307, 3.309. As just
discussed, schizoaffective disorder was not identified in
service or for several years after service. The only
competent medical opinion is to the effect that
schizoaffective disorder had its onset approximately four
years after service.
The record also contains no competent medical evidence of a
nexus between the veteran's current schizoaffective disorder
and his active duty service. In fact, the only medical
evidence pertaining to the etiology of the veteran's
schizoaffective disorder is that of the November 1999 VA
examiner who found that veteran's disability had its onset
years after his separation from active duty service.
The Board has considered the veteran's statements, but as a
lay person, he is not competent to provide an opinion
concerning medical causation. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).
In sum, the post-service medical evidence of record shows
that the first evidence of the veteran's claimed disability
was more than four years after his separation from active
duty service. In addition, there is no medical evidence that
the veteran's schizoaffective disorder is related to his
active duty service. The Board therefore concludes that the
evidence is against a nexus between the veteran's claimed
disability and his active duty service. Accordingly, the
Board must conclude that the preponderance of the evidence is
against the claim, and it is therefore, denied. 38 U.S.C.A.
§ 5107(b) (West 2002).
Residuals of Injuries to the Head, Arm, Hand, and Leg
Service treatment records are negative for injuries to the
arm or hand. In May 1974 the veteran reported twisting his
left knee four days ago, but X-rays of the tibia and fibula
were within normal limits. A diagnosis of shin splints was
made. With respect to the veteran's claimed head injury, he
was diagnosed with vertigo of an undetermined etiology in
March 1976. In April 1976, he experienced a seizure and
fell, hitting his head. A diagnosis of rule out seizure
disorder was made. A follow-up neurological consultation was
normal, and a May 1976 EEG and brain scan were negative for
abnormalities. The veteran's head, upper extremities and
lower extremities were found to be normal at his July 1976
separation examination.
The post-service medical evidence establishes that the
veteran began treatment at the Baltimore VAMC in June 1981.
At that time, he was diagnosed with seizures related to his
drug and alcohol abuse.
The veteran was involved in a motor vehicle accident in
February 1989. According to a January 1990 letter from his
private physician, he incurred a fracture of the right distal
tibia and fibula that resulted in a leg length discrepancy
and required skin grafts. While undergoing psychiatric
treatment at the VAMC in April 1992, the veteran also stated
that he incurred a head injury in a 1985 motor vehicle
accident. He was provided an EEG by his private physician in
June 1996 that showed abnormal slowing of background activity
as well as irregular waves of activity over both hemispheres.
The diagnosis was encephalopathy, greater on the right.
As discussed above, the veteran has been treated at numerous
medical facilities for substance abuse and psychotic symptoms
of his schizoaffective disorder. In April 1999, he reported
to a private doctor that he was struck in the back of the
head earlier that night and taken to the emergency room with
a head cut. In July 1999 he was noted to have a history of
head injuries and alcoholic seizures, and a month later, in
August 1999, he was diagnosed with dementia due to head
trauma and chronic alcoholism while hospitalized at the VAMC.
The veteran was also noted to have experienced a withdrawal
seizure in 1976 due to alcoholism by a VA neurologist in
September 2000.
The veteran was also found to have early mild knee
osteoarthritis in September 1999 and a right calf deformity
consistent with surgical repair. Similarly, in April 2002,
he was diagnosed with possible osteomyelitis and infection of
the right lower extremity secondary to a 1985 traumatic
injury.
Upon VA neurological examination in November 1999, the
veteran reported sustaining two head injuries. The first was
incurred in 1981 when he was struck by a large object, and
the second in 1985 when he received a severe head injury
during a motor vehicle accident. He reported losing
consciousness and having a month and a half hospital
admission. Since the accident, he had noticed an
intermittent tremor of the right hand. He also complained of
headaches following his head injury that have subsided.
Neurological examination of the veteran was normal, and the
diagnosis was status post closed head injury.
The veteran was also provided a VA orthopedic examination in
November 1999. He reported sustaining multiple injuries to
his right leg and arm after being struck by a car 14 years
ago. X-rays of the right tibia and fibula showed evidence of
deformity consistent with old healed fractures. X-rays of
the right forearm showed no evidence of arthritic change or
other significant abnormality. The diagnoses were status
post open reduction internal fixation of the right tibia and
fibula and status post soft tissue injury of the right
forearm.
The record shows multiple diagnoses pertaining to the
veteran's head, leg, arm, and hand including encephalopathy,
dementia, a history of seizures, a leg length discrepancy,
right calf deformity, right hand tremor, and a right forearm
soft tissue injury. In addition, the veteran has reported
that these injuries were incurred during service. As service
treatment records document injuries to the veteran's leg and
head, and the veteran is competent to report when he has
experienced symptoms, the Board finds that two of the three
elements necessary for service connection-current disability
and an in-service injury-are demonstrated.
The Board also finds that the third element of service
connection, i.e. a causal relationship between the veteran's
present disabilities and his active duty service is not
demonstrated. The service treatment records show a diagnosis
of left leg shin splints, and while the veteran experienced a
seizure and hit his head in April 1976, a brain scan and EEG
were normal. Moreover, all his systems were found to be
normal at his July 1976 separation examination.
In addition, the veteran has not reported a continuity of
symptomatology since service. The history he has provided is
to the effect that his disabilities were incurred as a result
of injuries during service, but that he did not seek
treatment for these conditions until 1981, almost five years
after his discharge from active duty service in August 1976.
There is also no competent evidence demonstrating that these
conditions manifested to a compensable degree in service or
during the presumptive period after service.
The veteran has contended during the course of his appeal
that he incurred his injuries during service. This recent
contention is not credible. The record consistently shows
that the veteran has provided clinical history linking the
onset of his injuries to his motor vehicle accident in 1985
or 1989. The clinical record is consistent with a history of
disabilities only after the post-service accident. The Board
finds that these statements, given for clinical purposes, are
more credible than the history the veteran has provided in
connection with his claim for compensation.
The record also contains no competent medical evidence of a
nexus between the veteran's current disabilities of the head,
arm, hand, and leg and his active duty service. In fact, all
the medical evidence of record, including the two November
1999 VA examination reports, links the veteran's disabilities
to his 1989 motor vehicle accident and chronic alcoholism.
The only opinion linking the current disabilities to service
is that of the veteran. As a lay person, he is not competent
to provide an opinion concerning medical causation. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In sum, the post-service medical evidence of record shows
that the first evidence of the veteran's claimed disabilities
was almost five years after his separation from active duty
service. In addition, there is no medical evidence that the
veteran's residual injuries of the head, arm, hand, or leg
are related to his active duty service. The Board therefore
concludes that the evidence is against a nexus between the
veteran's claimed disabilities and his active duty service.
Accordingly, the Board must conclude that the preponderance
of the evidence is against the claim, and it is therefore,
denied. 38 U.S.C.A. § 5107(b) (West 2002).
ORDER
Entitlement to service connection for a schizoaffective
disorder is denied.
Entitlement to service connection for residuals of injuries
to the head, arm, hand, and leg is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs